Chinese law

Chinese law is one of the oldest legal traditions in the world. In the 20th and 21st
century, law in China has been a complex mix of traditional Chinese approaches and
appropriation of Western conventions.
For most of the history of China, its legal system has been based on the Confucian
philosophy of social control through moral education, as well as the Legalist emphasis
on codified law and criminal sanction. Following the Revolution of 1911, the Republic
of China adopted a largely Western-style legal code[citation needed] in the civil law tradition
(specifically German-influenced). The establishment of the People's Republic of China
in 1949 brought with it a more Soviet-influenced system of socialist law. However,
earlier traditions from Chinese history have retained their influence, even to the present.
Law in the People's Republic of China is currently undergoing gradual reform, as many
elements inside and outside the country emphasize the need to strengthen the rule of law
in China, and international trade and globalization spur transformations in various areas
of Chinese domestic law.

Chinese legal tradition[edit]

The word for law in classical Chinese was f (). The Chinese character for f denotes
a meaning of "fair", "straight" and "just", derived from its water radical ().[citation needed] It
also carries the sense of "standard, measurement, and model".[1] Derk Bodde and
Clarence Morris held that the concept of f had an association with y (: "social
rightness").[2] Yan Fu, in his Chinese translation of Montesquieu's De l'esprit des lois
published in 1913, warned his readers about the difference between the Chinese f and
Western law: "The word 'law' in Western languages has four different interpretations in
Chinese as in l (: "order"), l (: "rites", "decorum"), f (: "human laws") and zh
(: "control").[3]
A term which preceded f was xng (), which originally probably referred to
decapitation. Xng later evolved to be a general term for laws that related to criminal
punishment. The early history Shang Shu recorded the earliest forms of the "five
penalties": tattooing, disfigurement, castration, mutilation, and death. Once written law
came into existence, the meaning of xng was extended to include not only punishments
but also any state prohibitions whose violation would result in punishments. In modern
times, xng may be understood in the sense of penal law or criminal law. An example of
the classical use of xng is Xng B (, lit. "Department of Punishment") for the legal
or justice department in imperial China.
The two major Chinese philosophical schools discussed below, Confucianism and
Legalism, strongly influenced the idea of law in China. Briefly, under Confucianism, the
state should lead the people with virtue and thus create a sense of shame which will
prevent bad conduct. Under Legalism, law is to be publicly promulgated standards of
conduct backed by state coercion. The tension between these two systems is that
Confucianism relies on tradition to make the leader the head of household of all China,
while Legalism makes standard law that even the emperor should be bound by. The

common factor is that both endorse to different degrees a paternalistic conception of the
state, which knows better than its citizens and makes laws to protect them. This concept
persisted throughout the imperial period, into the republican period, and can still be seen
acting today.
Unlike many other major civilizations where written law was held in honor and often
attributed to divine origin, law in early China was viewed in purely secular terms, and
its initial appearance was greeted with hostility by Confucian thinkers as indicative of a
serious moral decline, a violation of human morality, and even a disturbance of the total
cosmic order.[4] Historically, the people's awareness and acceptance of ethical norms was
shaped far more by the pervasive influence of custom and usage of property and by
inculcating moral precepts than by any formally enacted system of law. Early emperors
however embraced the Legalist ideal as a way of exerting control over their large and
growing territory and population. This process was integrated with traditional Chinese
beliefs in the cosmic order, holding that correct behavior was behavior consonant with
the appropriate responses set by f. Xng states the potential costs to the individual of
exceeding them and imposes penalties for these actions.[5]
The imperial period was characterized mainly by the concept of law as serving the state,
a means of exerting control over the citizenry. In the late Qing dynasty there were
efforts to reform the law codes mainly by importing German codes with slight
modifications. This effort continued and was amplified in the republican period
resulting in the Provisional Constitution of 1912 which included the idea of equality
under the law, rights for women, and broader rights for citizens vis--vis the
government. The onset of the communist period at first rolled back the development of
individual rights with the primary concept of law returning to that of a tool of the state.
After the Cultural Revolution devastated the ranks of intellectuals and legal
professionals, it took until 1982 for the idea of individual rights to reemerge as a
significant influence on Chinese law.
The current constitution, created in 1982, states in Article V that no organization or
individual is above the law and in Article III makes the Peoples Congresses and state
administration responsible to the people, paving the way for later efforts to allow
enforcement of individual rights. Passage of the Administrative Litigation Law of 1987
created legal recourse for individuals from arbitrary government action, an avenue
previously unavailable. Despite the deep-seated norm against legal proceedings,
litigation in the Chinese courts has increased dramatically, especially in recent years.
The continuing weakness of courts resulting from their dependence on the local
government for financial support and enforcement undermines the effectiveness of these
remedies but this has also begun to change with Chinas initiatives to increase legal
training and the professionalism of the judiciary.
One avenue of individual appeal from government action which continues to be
important is the custom of xnfng or petitions by citizens to the individuals officials for
change. The continuing wide use of xnfng reflects the fact that many officials are still
able to avoid legal sanctions and the underlying avoidance of the legal system, as well
as the personal ability of officials to personally intervene to change unjust results.
Recently xnfng has been institutionalized to some extent with the central government
mandating that every level of administration establish a xnfng office to handle
petitions and report them up to high levels. This solution by exertion of personal power

clearly goes against the idea of rule of law, and worse, some scholars have noted that
xnfng today functions more as an informational collection system for the government
than an effective review mechanism.

Confucianism and Legalism[edit]

Confucianism and Legalism are two major Classical legal theories or philosophies
developed during the Spring and Autumn period and the Warring States period, a time
that saw the most impressive proliferation of new ideas and philosophies in Chinese
history. While both theories call for governmental hierarchy, they differ drastically in
their views of human potential and the preferred means to achieve political order.
Nevertheless, both theories have influenced and continue to influence the development
of cultural, social, and legal norms in China.[6]
Confucianism[edit]
The basic premise of Confucianism is the idea that human beings are fundamentally
good. With this optimistic view on human potential, Confucius advocates for ruling
through li traditional customs, mores, and norms which allow people to have a sense
of shame and become humane people with good character, rather than through
government regulations and penal law. The idea is that people will internalize the
acceptable norms and only take proper actions. This will not only lead to a harmonious
social order, but it will also provide the additional benefit of improving an individuals
inner character and the overall quality of the society. In contrast, codified laws require
external compliance, and people may abide by the laws without fully understanding the
reason for compliance. As such, a social order achieved through formal laws does not
come with the additional benefit of better citizenry. It is worth noting, however, that
even Confucius did not advocate for the elimination of formal laws. Rather, according
to Confucius, laws should be used minimally and reserved only for those that insist on
pursuing ones self-interests without taking into account the well being of the society.
As Confucius rejects the general use of formal laws to achieve social order, what lies
vital to Confucius theory is the willing participation by citizens of the society to search
for commonly accepted, cooperative solutions. In addition to willing participation of
citizens, there must also be grounds or bases upon which commonly acceptable
solutions can be arrived at the concept known as li. Li is commonly understood as a
set of culturally and socially valued norms that provide guidance to proper behaviors
that will ultimately lead to a harmonious society. These norms are not fixed or
unchangeable over time but rather a reflection of what is accepted at a particular time in
a particular context. When conflicts arise, the li have to be applied and interpreted to
produce a just result and restore the harmony of the society. However, in the absence of
any procedural safeguard afforded by codified laws, interpretation of li is subject to
abuse.
Recognizing that people in a society hold diverse interests, Confucius charges the ruler
with the responsibility to unify these interests and maintain social order. This is not
done by dictatorship but by setting an example. Therefore, a ruler needs not to force his
people to behave properly. Instead, the ruler needs only to make himself respectful, and
the people will be induced and enlightened by his superior virtues to follow his example
an ideal known as wwi. Nevertheless, the ruler must know and understand the li to

be able to create solutions to conflict and problems the society faces. As the people are
to follow the moral standards and example set by the ruler, to a large extent, the quality
of the ruler determines the quality of the political order.
Legalism[edit]
In contrast to Confucius li-based theory, the Legalism advocates the utilization of
codified laws and harsh punishment to achieve social order. This is due to the legalists
belief that all human beings are born evil and self-interested. Therefore, if left
unrestrained, people would engage in selfish behavior which will undoubtedly lead to
social unrest. To cure this defect and force people to behave morally, the only way,
believed the legalists, is to publicly promulgate clearly written laws and impose harsh
punishments.
Realizing that the abilities of rulers are often limited and that reliance on the rulers
ability and judgment often leads to adverse results, the legalists designed a system in
which the law is run by the state, not the ruler. This ensures that the laws will be applied
impartially without the interference of personal bias of the ruler or ones who are
responsible for applying the laws. It also makes it irrelevant whether the ruler has
superior abilities. This non-action promoted by the legalists is their understanding of the
concept of wuwei, which is different from the Confucians understanding of the same
concept.
Comparison[edit]
Notwithstanding such an understanding, the ruler, like in Confucianism, has the ultimate
authority to decide what the law should be. Therefore, like Confucianism, Legalism is
subject to abuse as well. In fact, the Qin emperor implemented strict laws and extremely
harsh punishments without taking into account mitigating circumstances even for
insignificant crimes. For example, books were burned and people holding different
ideals were buried alive. While the Qin emperor successfully instilled fear and respect
for law into the minds of his people, the harshness of the law led to his quick demise
after only 14 years of reigning over China.
In summary, although both Confucianism and Legalism were developed in a period of
turmoil and both were aimed at the re-unification of the country, the two theories went
opposite directions with one advocating for and one against the use of formal laws to
achieve social order. What the two theories have in common is their concession of the
ultimate authority to the ruler, who remained above and beyond the li or law. It is true
that neither theory is ideal in achieving a social order. Nevertheless, both theories have
had a significant impact on the cultural and legal development in China, and their
influence remains visible today.
The significant influence of the Legalist tradition in Chinese law has historically been
overlooked. Although the Confucian ideology provided the fundamentals for the
substance of traditional law, the Legalist school constructed the important framework of
the traditional legal system. The Han dynasty retained the basic legal system established
under the Qin but modified some of the harsher aspects in line with the Confucian
philosophy of social control.

The Han dynasty formally recognized four sources of law: l (: "codified laws"), ling
(: "the emperor's order"), ke (: "statutes inherited from previous dynasties") and bi
(: "precedents"), among which ling has the highest binding power over the other
three. Most legal professionals were not lawyers but generalists trained in philosophy
and literature. The local, classically trained, Confucian gentry played a crucial role as
arbiters and handled all but the most serious local disputes.
Eventually, the incorporation of the essentials of Confucianist li into legal codes
occurred with this Confucian conception dominating ancient Chinese law. Ch'
concludes that the gradual process of Confucianisation of law was the most significant
development in the legal system of China prior to 20th century modernization.[7] The
line between ruling by moral influence and ruling by punishment was not always clearly
delineated. For example, li could be enforced by moral influence and legal means. The
metamorphosis of li into law depended on its widespread and unvaried acceptance by
society.
Although the codification of law was largely completed by the Tang Code of CE 624,
throughout the centuries the Confucian foundations of the Tang Code were retained, and
indeed with some aspects of it strengthened by the later dynasties. The Great Ming
Code, which was a model for the Qing code, covered every part of social and political
life, especially family and ritual, but also foreign relations and even relations of earthly
life with the cosmos. [8]
The Confucian notion that morality and self-discipline was more important than legal
codes caused many historians, such as Max Weber, until the mid-20th century to
conclude that law was not an important part of Imperial Chinese society. This notion,
however, has come under extreme criticism and is no longer the conventional wisdom
among Sinologists, who have concluded that Imperial China had an elaborate system of
both criminal and civil law which was comparable to anything found in Europe.
During the Qing dynasty, criminal justice was based on extremely detailed Great Qing
Legal Code. One element of the traditional Chinese criminal justice system is the notion
that criminal law has a moral purpose, one of which is to get the convicted to repent and
see the error of his ways. In the traditional Chinese legal system, a person could not be
convicted of a crime unless he has confessed. This often led to the use of torture, in
order to extract the necessary confession. These elements still influence modern Chinese
views toward law. All capital offenses were reported to the capital and required the
personal approval of the emperor.
There was no civil code separate from the criminal code, which led to the now
discredited belief that traditional Chinese law had no civil law. More recent studies have
demonstrated that most of the magistrates' legal work was in civil disputes, and that
there was an elaborate system of civil law which used the criminal code to establish
torts.

Modernization[edit]
The introduction and translation of Western legal texts into Chinese is believed to have
been started under the auspices of Lin Zexu in 1839. More systematic introduction of
Western law together with other Western sciences started with the establishment of

Tongwen Guan in 1862. The major efforts in translation of Western law that continued
until the 1920s prepared the building blocks for modern Chinese legal language and
Chinese law.[9] Legal translation was very important from 1896 to 1936 during which
period the Chinese absorbed and codified their version of Western laws. These efforts
were assisted by the medium of the Japanese legal language and law developed in Japan
during the Meiji period which involved in large part Japanese translation of European
Continental laws.
In the late Qing dynasty there was a concerted effort to establish legal codes based on
European models. Because of the German victory in the Franco-Prussian War and
because Japan was used as the model for political and legal reform, the law codes which
were adopted were modeled closely after that of Germany.
Attitudes toward the traditional Chinese legal system changed markedly in the late-20th
century. Most Chinese and Westerners of the early 20th century regarded the traditional
Chinese legal system as backward and barbaric. However, extensive research into
China's traditional legal system has caused attitudes to become more favorable in the
late-20th and early 21st centuries. Researchers of the early and mid-20th century tended
to compare the traditional Chinese legal system to then contemporary systems, finding
the former to be backward. However, more recent research compared the 18th-century
Chinese legal system to European systems of the 18th century, resulting in a far more
positive view of traditional Chinese law.[citation needed]
The Department of Punishment was changed to fa bu (: "Department of Law") in
the early 1900s legal reforms.

Republic of China[edit]
Main article: Law of the Republic of China
Law in the Republic of China (Taiwan) is mainly a civil law system. The legal structure
is codified into the Six Codes: the Constitution, the Civil Code, the Code of Civil
Procedures, the Criminal Code, the Code of Criminal Procedures and in Administrative
Laws.

People's Republic of China[edit]

Main article: Law of the People's Republic of China
After the Communist victory in 1949, the newly established People's Republic of China
(PRC) quickly abolished the ROC's legal codes and attempted to create a system of
socialist law copied from the Soviet Union. With the Sino-Soviet split (1960-1989) and
the Cultural Revolution (1966-1976), all legal work came under suspicion of being
counter-revolutionary, and the legal system completely collapsed.
Over the past century China has had several constitutions.[10] The first attempts towards
implementing a constitution in China occurred during the final decade (1902-1912) of
the Qing Dynasty. Various controlling groups subsequently promulgated different
constitutions between that time and the establishment of the PRC in 1949. The PRC had
a provisional constitution from its inception until the enactment of its first constitution

in 1954. This initial constitution was based on the constitution of the Soviet Union. It
was shortly ignored, however, and became without legal force. Although it provided for
the election of the National Peoples Congress (NPC) every four years as the highest
state power, these guidelines were not adhered to. The second constitution of the PRC,
modeled on the ideology of the Cultural Revolution, came into force in 1975. This
constitution subjected the NPC to the Communist Party of China and removed previous
constitutional protections such as equality under the law and private-property succession
rights. It was also immediately disregarded through breaches of its provisions and nonadherence to guidelines regarding the NPC. The third constitution of the PRC was
adopted in 1978. Although this version moved away from the ideologies of the Cultural
Revolution, it did retain some remnants of it. It also retained Communist Party control
over the state structure. However, reformists subsequently gained power, which led to
the breakdown of this constitution as focus shifted to economic construction and
modernization.
With the start of the Deng Xiaoping reforms (ca 1979), the need for reconstructing a
legal system to restrain abuses of official authority and revolutionary excesses was seen.
[by whom?]
In 1982 the National People's Congress adopted a new state constitution that
emphasized the rule of law under which even party leaders are theoretically held
accountable. Legal reconstruction occurred in piece-meal fashion. Typically, temporary
or local regulations would be established; after a few years of experimentation,
conflicting regulations and laws would be standardized.
The current Constitution of the PRC, enacted in 1982, reflects the model of the first
PRC constitution.[11] The Constitution provides for leadership through the working class,
led in turn by the Communist Party. This Constitution also contains more extensive
rights than any of the previous constitutions. The rights include equality before the law,
political rights, religious freedom, personal freedom, social and economic rights,
cultural and educational rights, and familial rights. These rights, however, are connected
to social duties. The duties include safeguarding the unity, security, honor, and interests
of the country, observing law and social ethics, paying taxes, and serving in the military.
Neither the rights nor duties provided for in the Constitution are exhaustive.
The Constitution provides that the NPC is the supreme organ of state power over a
structure of other people's congresses at various levels.[12] The NPC has power to:

amend the Constitution by a two-thirds majority

promulgate legislation

elect and remove highest-level officials

determine the budget

control economic and social-development planning

The NPC also includes a Standing Committee that functions much as the NPC does
when the NPC is not in session. Although the Standing Committee has had some powers
since 1955, its law-making powers were initially provided for in the 1982 Constitution.

The NPC sits at the highest level in the hierarchy of governmental structure in the PRC.
This national level is followed in descending order by the provincial level (including
autonomous regions and municipalities directly under the national level), the prefectural
level, the county level, and the townships and towns level. Government members at the
lower two levels are directly elected, and those at the higher levels are elected by the
lower levels. In addition to the NPC, the provincial people's congresses possesses
legislative power and can pass laws so long as they do not contravene the Constitution
or higher legislation or administrative regulations.
The Constitution states its own supremacy.[13] However, it has been theorized[by whom?] that
the supremacy of the Communist Party means that the Constitution and law are not
supreme, and that this perspective results from the Marxist view of law as simply a
superstructure combined with a lack of recognition of rule of law in philosophical or
historical tradition. Although the Constitution provides for legislative, executive,
judicial, and procuratorial powers, they all remain subject to Communist Party
leadership. Often, important political decisions are made through actions which are not
regulated by the Constitution. Additionally, courts need not rely on the Constitution in
deciding cases, and they may not review legislation for Constitutionality.[citation needed]
Nonetheless the Constitution does provide the linguistic framework for conducting
government affairs and describing them in the media.
Since 1979, when the drive to establish a functioning legal system began, more than 300
laws and regulations, most of them in the economic area, have been promulgated. The
use of mediation committees, informed groups of citizens who resolve about 90% of the
PRC's civil disputes and some minor criminal cases at no cost to the parties, is one
innovative device. More than 800,000 such committees operate - in both rural and urban
areas.
In drafting the new laws, the PRC has not copied any other legal system wholesale, and
the general pattern has involved issuing laws for a specific topic or location. Often laws
are drafted on a trial basis, with the law being redrafted after several years. This process
of creating a legal infrastructure piecemeal has led to many situations where the laws
are missing, confusing, or contradictory, and has led to judicial decisions having more
precedental value than in most civil law jurisdictions. In formulating laws, the PRC has
been influenced by a number of sources, including traditional Chinese views toward the
role of law, the PRC's socialist background, the German-based law of the Republic of
China on Taiwan, and the English-based common law used in Hong Kong.
Legal reform became a government priority in the 1990s. The Chinese government has
promoted a reform it often calls "legalisation" (). Legalisation, among other
things, has provided the rgime with a gloss of legitimacy and has enhanced
predictability.[citation needed] There have been major efforts in the rationalization and
strengthening of the legal structure and institution building in terms of developing and
improving the professionalism of the legislature, judiciary and legal profession. As
market reforms have deepened and social inequality has widened, legal forums
ranging from mediation and arbitration commissions to courts have come to play an
increasingly prominent role.
The 1994 Administrative Procedural Law allows citizens to sue officials for abuse of
authority or malfeasance. In addition, the criminal law and the criminal-procedures laws

were amended to introduce significant reforms. The criminal-law amendments

abolished the crime of "counter-revolutionary" activity. However political dissidents are
sometimes charged on the grounds of subverting state security or of publishing state
secrets. Criminal-procedures reforms also encouraged establishment of a more
transparent, adversarial trial process. Minor crimes such as prostitution and drug use are
sometimes dealt with under re-education through labor laws. The PRC constitution and
laws provide for fundamental human rights, including due process, but some have
argued that they are often ignored in practice. (See Human rights in the People's
Republic of China.)
The basic principles of Chinese legislative drafting include generality and flexibility.
Sometimes excessive generality and omissions in Chinese law, coupled with the wide
discretionary powers conferred on local authorities to implement laws, undermines the
predictability and certainty of law. Furthermore, as Chinese law is intended[by whom?] to be
educative, the language of the law is that of the ordinary language comprehensible to
the average citizen,[citation needed] although many laws are drafted in broad and indeterminate
language.
As a result of a pending trade war with the United States of America over violations of
intellectual property rights of American corporations in the early 1990s,[citation needed] the
People's Republic of China's trademark law has been modified and as of 1995 offers
significant protections to foreign trademark-owners.[14][page needed]
After their respective transfers of sovereignty, Hong Kong and Macau continue to
practice English Common Law and Portuguese legal systems respectively, with their
own courts of final appeal. In other words, Hong Kong and Macau lie outside of the
legal jurisdiction of the People's Republic of China, except on constitutional issues.
Due to the growing sophistication of Chinese laws, the expansion of the rule of law, as
well as an influx of foreign law firms, China has also begun to develop a legal-services
market. Foreign lawyers have accompanied foreign capital and their clients to China,
which has had an immense influence on the promulgation of new Chinese laws based on
international norms, especially in regards to intellectual property and corporate and
securities law.[14][need quotation to verify]
On July 1, 1992, in order to meet growing demand, the Chinese government opened the
legal-services market to foreign law-firms, allowing them to establish offices in China
when the Ministry of Justice and the State Administration of Industry and Commerce
(SAOIC) issued the Provisional Regulation of Establishment of Offices by Foreign Law
Firms regulation.[15]
As a result, many foreign law firms, including the United States' Baker & McKenzie
and Paul, Weiss, Rifkind, Wharton & Garrison, along with several British firms,
incorporated consulting firms in their home countries or in Hong Kong and then set up
subsidiaries in Beijing or Shanghai to provide legal services.
However, many regulatory barriers to entry remain to protect the domestic legal
industry. Issues relating to Chinese law must be referred to Chinese law firms, and
foreign lawyers are also prohibited from interpreting or practicing Chinese law or from
representing their clients in court. However, in reality many foreign law firms interpret

laws and manage litigation by directing the local firms they must have cooperative
relationships with. In this regard, China's restrictive legal market can be directly tied[by
whom?]
to a phobia of people asserting their legal rights in the face of rampant corruption.
Information received[by whom?] from the State Council Legislative Office suggests that China
may be allowing foreigners to sit the Chinese Lawyers Examination, or have a mutual
recognition treaty with other countries to allow foreign lawyers to conduct nonlitigation Chinese legal work.[citation needed]
While China's legal market continues to open up, China's laws and regulations have
helped the development of a number of domestic Chinese firms specializing in working
with foreigners to meet the demand of a booming economy. According to Asia Law and
Business magazine China Awards, the top China firms were[when?] King & Wood PRC
Lawyers, Commerce & Finance Law Offices, Fangda Partners, Haiwen & Partners, Jun
He Law Offices and Lehman, Lee & Xu.[16]

Legal rights[edit]
Classical Chinese does not have a semantic equivalent to the concept of "rights".[citation needed]
The idea of rights was introduced to China from the West. Its translation as qunl (
) was coined by William Alexander Parsons Martin in 1864, in his translation of
Henry Wheaton's Elements of International Law....

Rule of law[edit]
One of the most commonly used phrases in contemporary China, by legal scholars and
politicians alike, is fzh (). Fzh can be translated into English as rule of law,
but questions have often been asked whether Chinese leaders meant "rule by law",
which means the instrumental use of laws by rulers to facilitate social control and to
impose punishment as understood in the Legalist tradition.[17] The related concepts of y
fzh gu (: "governing the nation in accordance with law") and jinsh shhu
zhy fzh guji (: "building a socialist rule of law state")
have been part of the Chinese Communist Party's official policy since the mid-1990s. In
1999, the NPC adopted an amendment to the Chinese Constitution, incorporating both
concepts in Article 5.
The existence of the rule of law in China has been widely debated.[18] When discussing
Chinese law, it is worth noting that various expressions have been used, including
strengthening the law, tightening up the legal system, abiding by the law in
administration, rule by law, and the rule of law. Different shades of meanings have
been attached to each of these terms, but Chinese officials and scholars have employed
the expressions rather loosely and sometimes interchangeably.[19] However, the central
government had originally preferred the expression, strengthening the law/legal
system to the rule of law. It was thought that the latter might give a controversial
connotation of the instrumentality, while the former conveyed a straightforward
meaning of strengthening the law and institutions. Strengthening the law meant
reform of legislation and enforcement of laws.[19] There are differing theories of the rule
of law. One theory is the "thin", or formal, theory of rule of law, and the other is the
"thick" theory.

The "thin" theory of rule of law is described by Randall Peerenboom as at the basest
level incorporating a legal system that imposes meaningful restraints on the state and
individuals in ruling power, that the law is supreme, and that all citizens are equal
before the law (Peerenboom, 2). According to Lon Fullers account of thin theory, rule
of law exists in a society when the laws of that society are general, public, prospective,
clear, consistent, capable of being followed, stable, and enforced (Peerenboom, 3). The
thin theory has also been explained by Joseph Raz as emphasizing the formal or
instrumental aspects of a legal system regardless of whether it is part of a particular
political structure, i.e. a democratic or non-democratic society.[14] Thick theory rule of
law espouses all the elements of thin theory in addition imposes a political, social, and
economic concept into the rule of law. The rule of law is regarded by some as
presupposing political or economic structures of liberal democracy, human rights and
other ideal socio-legal order.[11] Some scholars believe that given China's socialist and
non-democratic political system and practice, it is at best regarded as a country of rule
by law with law used by the state as an instrument for social control.[12] However,
others rely on the formal or thin theory of rule of law to interpret fazhi as a legal reality
in China.[13] Additionally, some believe that China may still fall short of the thin theory
of rule of law.
Of particular relevance to the second principle set out above, was the enactment of the
Administrative Permission Law of the PRC (APL) on 27 August 2003, effective from
July 2004. The APL for the first time requires all laws and regulations that subject any
civil act to approval requirements to be published.[20]
The APL also provides that only those laws adopted by the National Peoples Congress
or its Standing Committee, administrative regulations promulgated by the State Council,
and local regulations adopted by the local peoples congresses may impose
administrative approval requirements. Individual ministries or agencies (central or local)
do not have such powers except in specified circumstances. This is consistent with the
hierarchy of laws and regulations provided under the Legislative Law of the PRC. The
enactment of the APL represents an encouraging step forward.[20]
Despite the newly elevated role of courts in Chinese society, there still remains some
consensus about defects in Chinas legal system in regards to progressing towards the
rule of law. Scholars point to the following defects as slowing movement toward rule of
law. These include:

First, the National Peoples Congress is ineffective at executing its constitutional

duty to legislate and supervise the government.[21]

Second, the Chinese Constitution is not treated as the supreme law, nor is it
enforced.[22]

Third, the judiciary is not independent from political pressure. On the other
hand, direct intervention in particular cases by the CCP has lessened in recent
years, as has the direct influence of the CCP on the legislative process.[23]

Fourth, there is a high level of corruption among public officials. Personal

favors, bribery, and taking of public monies are all too common at all levels of
government.[24]

Finally, the legal profession is inadequate for lack of qualified attorneys and
judges.[25] This failure is being remedied by legislation aimed at instituting higher
educational standards for judges, opening more courts and law schools
throughout China.[26]

In the 2000s, the Weiquan movement began in the PRC, seeking to advance citizens'
rights partly by petitioning for enforcement of existing laws, and partly through
activism. Lawyers in the movement have seen some court victories, but in other cases
they are unsuccessful.